Frooition Terms & Conditions of Business

PLATFORM DESIGN TERMS AND CONDITIONS.
Updated: 13th June 2017

1. INTERPRETATION

1.1. The following definitions shall apply to these Terms.
Business Day: any day (other than a Saturday or Sunday) when banks are generally open for normal business in London.
Charges: the charges in respect of the Services set out in the Specification.
Confidential Information: all information (including all specifications, drawings and designs), where the information is identified as confidential at the time of disclosure or ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
Customer: the customer set out on the Specification.
Force Majeure Event: any event arising which is beyond the reasonable control of the affected party (including any industrial dispute affecting any third party, governmental regulations, fire, flood, disaster, civil riot or war).
Frooition: Froo.com Limited incorporated and registered in England and Wales with company number 05902288 whose registered office is at Unit E Silver End Business Park, Brettell Lane, Brierley Hill, West Midlands, DY5 3LG, trading as Frooition.
Intellectual Property Rights: all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, trade marks, service marks, trade names, patents, petty patents, utility models, design rights, semi-conductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off.
Services: the design and development services to be provided by Frooition pursuant to these Terms as set out in the Specification.
Specification: the specification set out in the order form and/or Frooition’s invoice for the Services and to which these terms are attached, as applicable.
Store and Listing Template: The eBay store and listing template to be designed and developed by Frooition pursuant to these terms.
1.2. Clause headings shall not affect the interpretation of these Terms.
1.3. In the event that the provisions set out in these Terms conflict with the Specification, the Specification shall prevail.

2. SERVICES

2.1. Frooition shall provide the Services in accordance with the Specification.
2.2. Frooition shall prepare and provide the Customer with previews of the Store and Listing Template, which shall include such information as the parties agree upon in writing. These previews shall then be approved by the Customer at its reasonable discretion, subject to the below.
2.3. The Customer shall promptly notify Frooition in writing if it believes (acting reasonably) that the templates do not function with or comply with the specification agreed between the parties in writing (Error). Frooition shall use all reasonable endeavours to correct or remedy any Error, providing that it may charge the Customer for carrying out such work where the Error is caused by any failure by the Customer to comply with its obligations under these Terms (including but not limited to any failure by the Customer to provide the information required by Frooition in order to carry out the Services or where the information provided by the Customer is incorrect or incomplete). Frooition shall agree upon any additional charges with the Customer before carrying out any such work. Frooition shall then provide the templates once again for the Customer’s approval and the Customer shall inspect the templates once again in accordance with this Clause 2.
2.4. Once the templates have been accepted Frooition shall develop and implement the design into the Customer’s account and listings page.
2.5. Acceptance of the templates shall be deemed to have taken place upon the occurrence of any of the following events:
2.5.1. the Customer uses any part of the Store and Listing Template for any revenue-earning purposes or to provide any services to third parties other than for test purposes; or
2.5.2. the Customer fails to approve the Store and Listing Template in accordance with Clause 2.2 or to notify Frooition of any Error in accordance with Clause 2.3 within 30 days of being provided with the templates by Frooition in accordance with this Clause 2.

3. CUSTOMER OBLIGATIONS

3.1. The Customer agrees that it shall:
3.1.1. provide Frooition with access to, and use of, all information, data and documentation reasonably required by Frooition for the performance of its obligations under these Terms upon being requested to do so;
3.1.2. ensure that such information, data and documentation is complete and accurate in all material respects; and
3.1.3. notify Frooition of any changes to the information, data and documentation it provides to Frooition where relevant.
3.2. Where Frooition is required to comply with any third party website owner’s platform selling policy or similar rules or regulations, the Customer agrees that it shall provide Frooition with all reasonable assistance in ensuring that it is able to comply with the same.
3.3. The Customer shall permit Frooition to place discrete branding (in a single image no bigger than 200×75 pixels, plus text) on any web-store created or designed using the Services, the wording of which shall be as set out in the Specification. The Customer agrees that it shall not remove, cover or otherwise interfere with this branding, and that it has no claim over any revenues derived by Frooition from such branding.

4. PAYMENT

4.1. Frooition shall issue a VAT invoice in respect of the Charges, and the Customer shall pay to Frooition the Charges in accordance with the timescales set out in the Specification, unless the Customer raises a genuine dispute in writing before payment falls due (in which case the Customer shall promptly provide all reasonable assistance to help Frooition resolve such disputes). All Charges are exclusive of VAT.
4.2. The Store and Listing Template will not be permitted to operate in a live environment until the payments specified in the Specification have been received by Frooition in full.
4.3. If the Customer wishes to cancel the Services then it shall be entitled to the following refund:

Refund Timescale:

Within 7 days of placing an order for the Services:
All monies paid by the Customer in respect of such services less a £100 / $150 US administration fee.

More than 7 days after placing an order, but prior to a preview being signed off by the Customer :
50% of monies paid by the Customer in respect of such Services.

Once a preview has been signed off by the Customer:
No refund is available.

5. WARRANTIES

5.1. The Customer warrants that it has permission to provide the materials it provides to Frooition.
5.2. Frooition warrants that:
5.2.1. it shall provide the Services:
5.2.1.1. in accordance with the Specification;
5.2.1.2. in accordance with any and all applicable laws, regulations and statute;
5.2.1.3. with reasonable care and skill; and
5.2.1.4. in accordance with generally recognised commercial practices and standards; and
5.2.2. the Store and Listing Template will perform substantially in accordance with the Specification for a period of 30 days from acceptance in accordance with Clause 2. If the Store and Listing Template does not so perform, Frooition shall, for no additional charge, carry out any work necessary in order to ensure that the Store and Listing Template substantially complies with the specification.
5.3. The warranty set out in Clause 5.2 shall not apply to the extent that any failure of the Store and Listing Template to perform substantially in accordance with the specification is caused by any act or omission of the Customer or any third party (including but not limited to any third party website owner).
5.4. Frooition cannot warrant that changes made by a third party website owner (such as eBay) to its website platform will not affect the Services, and Frooition shall not be liable for any damage or loss suffered by the Customer as a result of such changes.
5.5. These Terms and the documents referred to in them set out the full extent of Frooition’s obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into these Terms or any collateral contract (whether by statute or otherwise) are hereby excluded.

6. LIABILITY

6.1. Nothing in these Terms shall operate to exclude or limit either party’s liability for:
6.1.1. death or personal injury caused by its negligence;
6.1.2. fraud; or
6.1.3. any other liability which cannot be excluded or limited under applicable law.
6.2. Neither party shall be liable to the other for any loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage.
6.3. Subject to Clause 6.1, each party’s aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with these Terms or any collateral contract shall in no circumstances exceed 125% of the total Charges payable by the Customer to Frooition under these Terms, or such other amount as may be set out in the Specification. This limit shall not apply to Clause 7.4, which shall be limited to the amount that Frooition is successfully able to claim under its insurance.
6.4. Frooition shall take out and maintain such insurance policies as may be set out in the Specification.

7. INTELLECTUAL PROPERTY RIGHTS

7.1. Unless otherwise stated, Frooition (or its licensors) own all Intellectual Property Rights in the Services and all material it provides to the Customer. Use of this material is permitted only where expressly authorised by Frooition but Frooition hereby grants the Customer a non-exclusive licence of such Intellectual Property Rights for the purpose of operating the Store and Listing Template.
7.2. The Customer shall retain the Intellectual Property Rights in any and all materials provided by it to Frooition. However, the Customer shall grant to Frooition a non-exclusive, royalty-free licence to use such material as far as is necessary for Frooition to carry out the Services (and for no other purpose). Frooition shall cease use of any and all materials provided by the Customer upon the termination of expiry of this Agreement.
7.3. The Customer shall indemnify Frooition against all damages, losses and expenses arising as a result of any action or claim that the information, documentation or materials the Customer provides infringes the Intellectual Property Rights of a third party.
7.4. Frooition shall indemnify the Customer against all damages, losses and expenses arising as a result of any action or claim that the Store and Listing Template or any information, documentation or materials Frooition provides infringes any Intellectual Property Rights of a third party other than infringements referred to in Clause 7.3 or where the action or claim arises out of Frooition’s compliance with any designs, specifications or instructions provided by the Customer.
7.5. The indemnities in Clause 7.2 and Clause 7.3 are subject to the following conditions:
7.5.1. the indemnified party promptly notifies the indemnifier in writing of the claim;
7.5.2. the indemnified party makes no admissions or settlements without the indemnifier’s prior written consent;
7.5.3. the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and
7.5.4. the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim.

8. TERM AND TERMINATION

8.1. These Terms shall commence on the date Frooition accepts the Specification and shall (subject to earlier termination pursuant to this Clause 8) terminate automatically on completion of the Services and payment of all outstanding sums.
8.2. Either party may terminate these Terms immediately at any time by written notice to the other party if:
8.2.1. that other party commits any material breach of its obligations under these Terms which (if remediable) is not remedied within 14 days after the service of written notice specifying the breach and requiring it to be remedied;
8.2.2. that other party ceases to trade (either in whole, or as to any part or division involved in the performance of these Terms);
8.2.3. that other party becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to that party;
8.2.4. a person (including the holder of a charge or other security interest) is appointed to manage or take control of the whole or part of the business or assets of that other party, or notice of an intention to appoint such a person is given or documents relating to such an appointment are filed with any court;
8.2.5. the ability of that other party’s creditors to take any action to enforce their debts is suspended, restricted or prevented or some or all of that party’s creditors accept, by agreement or pursuant to a court order, an amount of less than the sums owing to them in satisfaction of those sums; or
8.2.6. any process is instituted which could lead to that other party being dissolved and its assets being distributed to its creditors, shareholders or other contributors (other than for the purposes of solvent amalgamation or reconstruction).
8.3. The Customer may terminate the Services at any time on providing Frooition with no less than seven days’ prior written notice. Any deposit paid by the Customer shall be non-refundable in such instances (providing that this shall not apply where the Customer terminates this Agreement in accordance with Clause 8.2 above).
8.4. On expiry or termination of these Terms:
8.4.1. each party shall immediately cease to use any and all materials belonging to the other party and promptly return the same to the other party; and
8.4.2. all provisions of these Terms shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.

9. CONFIDENTIALITY

9.1. Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
9.2. Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.
9.3. The obligations set out in this Clause 9 shall not apply to Confidential Information which the receiving party can demonstrate:
9.3.1. is or has become publicly known other than through breach of this clause;
9.3.2. was in possession of the receiving party prior to disclosure by the other party;
9.3.3. was received by the receiving party from an independent third party who has full right of disclosure;
9.3.4. was independently developed by the receiving party; or
9.3.5. was required to be disclosed by governmental authority.

10. NOTICES

10.1. Any notice given under these Terms shall be in writing and delivered personally or sent by pre-paid first-class post, recorded delivery, registered post, fax or email to the address, fax number or e-mail address set out in the Specification (or such other person, address, fax number or e-mail address as the receiving party may have notified to the other); and
10.2. A notice is deemed to have been received:
10.2.1. if delivered personally, at the time of delivery;
10.2.2. in the case of fax or e-mail, at the time of transmission, provided a confirmatory copy is sent by first-class pre-paid post or by personal delivery before the end of the next Business Day;
10.2.3. in the case of pre-paid first class post, recorded delivery or registered post, 48 hours from the date of posting;
10.2.4. in the case of registered airmail, five days from the date of posting; or
10.2.5. if deemed receipt under the previous paragraphs of this Clause 10.2 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is not a public holiday in the place of receipt), when business next starts in the place of receipt.

11. GENERAL

11.1. Neither party shall be permitted to make any media release or public announcement relating to this Agreement unless and until it has explicitly asked the other party in writing and obtained the other party’s written consent to the same. Frooition shall however be permitted to place an example of the Customer’s store design within its client portfolio on its website for promotional purposes.
11.2. A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under these Terms shall forthwith notify the other and shall inform the other of the period for which it is estimated that such failure or delay will continue. The affected party shall not be liable for any loss or damage incurred by the other party as a result of a Force Majeure Event providing it complies with its obligations under this clause.
11.3. Neither party may assign or transfer any of its rights or obligations under these Terms without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.
11.4. These Terms (and the documents referred to in them) set out the entire agreement between the parties. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to these Terms except as expressly stated in these Terms (or the documents referred to in them).
11.5. These Terms are made for the benefit of the parties to it and is not intended to benefit, or be enforceable by, any other person.
11.6. A variation of these Terms shall be in writing and signed by or on behalf of both parties to these Terms.
11.7. A waiver of any right under these Terms is only effective if it is in writing, and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. No waiver shall be implied by taking or failing to take any other action.
11.8. If any provision in these Terms is deemed invalid, void or unenforceable, that term shall be deleted from these Terms and such deletion shall not affect the validity or enforceability of the remaining provisions.
11.9. Nothing in these Terms is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
11.10. Any legal proceedings instituted against the Customer by Frooition shall be brought in the courts of the Customer’s country/state of domicile and any legal proceedings against Frooition by the Customer shall be brought in the courts of England and Wales. These Terms and such proceedings shall be governed by the laws of England and Wales and each party agrees to submit to the jurisdiction of the courts as set out above.

### LISTING RESCUE CAVEATS ###

EBay Listing Rescue Terms:

It is impossible for us to visually check every listing before running the cleaning process. We aim to inspect a large enough sample to gauge what active content and
templates can be removed.

This means:

• We may not be aware of every use of active content or templates in your listings. The result is that these uses may not be removed during the cleaning.
• We may not be aware of any incorrect usage of active content or templates. This may produce undesired results after the cleaning.
• We may not be aware of how user entered HTML is being used across every listing.

• Removing of active content involves the deletion of code from your listings’ description. While we aim to only remove code related to active content or templates, there
  are factors outside our control that could result in unintended code removal. These factors can include but are not limited to.
  • Modifications made to the original code of the active content or template.
  • Incorrect usage of the active content or a template.
  • Elements of a listing being dependent upon code contained in the active content or template. For example, a listing description that has been styled using CSS
    used in the template to be removed.
• Unintended code removal can result in, but is not limited to, the following issues.
  • Elements of a listing, such as images or description, being removed.
  • The visual layout of a listing appearing to be broken.
• There will be a period of time between the initial sampling of existing listings and the cleaning. Issues may occur if factors outside our control are introduced during
  that period. These can include, but are not limited to:
  • Code being modified in existing listings. This can include the addition or removal of active content or third party templates, or the manual editing of descriptions.
  • New listings are added whose code is different to existing listings.
• We can only clean listings that are active on eBay. We cannot revise sold, unsold, or deleted listings.
• Cleaning a listing is done by revising the listing. There are factors outside our control that may prevent a revision from being allowed. These factors include, but are not
  limited to:
  • The listing violating eBay’s policies.
  • The eBay user being in violation of eBay’s policies.
  • eBay may impose restrictions at the time a listing is revised.
• Removing active content from a template may result in it no longer working. This can produce results that include but are not limited to:
  • Elements of the template, such as scrolling galleries and tabs, may no longer work.
  • Elements of a template, such as images, the description, seller information, being no longer visible.

eBay Bulk Apply Terms:

It is impossible for us to visually check every listing before applying the template. We aim to inspect a large enough sample to gauge that the template can be applied successfully.

This means:

• We may not be aware of every use of existing active content or third party templates in your listings.
• We may not be aware of any incorrect usage of existing active content or third party templates.
• We may not be aware of how user entered HTML is being used across every listing.
• Applying the template involves the addition of code to a listing’s description. While we aim to add the template in such a way as to cause the least amount of disruption, there are factors outside our control that could result in issues.
  • Existing active content or third party templates.
  • User created HTML used in the listing’s description.
• Disruptions that can occur can be, but are not limited to.
  • Existing active content or third party templates reaming in the listing.
  • The listing appearing visually broken due to elements in the existing listing description.
• There will be a period of time between the initial sampling of existing listings and the bulk applying of the template. Issues may occur if factors outside our control are
  introduced during that period. These can include, but are not limited to:
  • Code being modified in existing listings. This can include the addition or removal of active content or third party templates, or the manual editing of descriptions.
  • New listings are added whose code is different to existing listings.
• We may decide that your listings can be cleaned as part of the bulk applying. In this instance extra caveats would be applicable.
• We can only apply your template to listings that are active on eBay. We cannot revise sold, unsold, or deleted listings.
• Applying the template is done by revising the listing. There are factors outside our control that may prevent a revision from being allowed. These factors include, but
  are not limited to:
  • The listing violating eBay’s policies.
  • The eBay user being in violation of eBay’s policies.
  • eBay may impose restrictions at the time a listing is revised.

WEBSITE DESIGN TERMS AND CONDITIONS

1. INTERPRETATION
1.1. The following definitions shall apply to these Terms.
Business Day: any day (other than a Saturday or Sunday) when banks are generally open for normal business in London.
Charges: the charges in respect of the Services set out in the Specification.
Confidential Information: all information (including all specifications, drawings and designs), where the information is identified as confidential at the time of disclosure or ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
Content: the content and material to be provided by Frooition to be placed on the Website in accordance with these Terms and the Specification.
Customer: the customer set out on the Specification.
Force Majeure Event: any event arising which is beyond the reasonable control of the affected party (including any industrial dispute affecting any third party, governmental regulations, fire, flood, disaster, civil riot or war).
Frooition: Froo.com Limited incorporated and registered in England and Wales with company number 05902288 whose registered office is at Unit E Silver End Business Park, Brettell Lane, Brierley Hill, West Midlands, DY5 3LG trading as Frooition.
Intellectual Property Rights: all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, trade marks, service marks, trade names, patents, petty patents, utility models, design rights, semi-conductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off.
Services: the design and development services to be provided by Frooition pursuant to these Terms as set out in the Specification.
Specification: the specification set out in the Specification and/or Frooition’s invoice for the Services and to which these terms are attached, as applicable.
Website: the website to be designed and developed by Frooition pursuant to these Terms as specified in the Specification.
1.2. Clause headings shall not affect the interpretation of these Terms.
1.3. In the event that the provisions set out in these Terms conflict with the Specification, the Specification shall prevail.

2. SERVICES
2.1. Frooition shall provide the Services in accordance with the Specification.
2.2. Frooition shall prepare and provide the Customer with previews of the Website’s template, which shall include such information as the parties agree upon in writing. These previews shall then be approved by the Customer at its reasonable discretion, subject to the below.
2.3. The Customer shall promptly notify Frooition in writing if it believes (acting reasonably) that the templates do not function with or comply with the specification agreed between the parties in writing (Error). Frooition shall use all reasonable endeavours to correct or remedy any Error, providing that it may charge the Customer for carrying out such work where the Error is caused by any failure by the Customer to comply with its obligations under these Terms (including but not limited to any failure by the Customer to provide the information required by Frooition in order to carry out the Services or where the information provided by the Customer is incorrect or incomplete). Frooition shall agree upon any additional charges with the Customer before carrying out any such work. Frooition shall then provide the templates once again for the Customer’s approval and the Customer shall inspect the templates once again in accordance with this Clause 2.
2.4. Once the templates have been accepted Frooition shall develop and implement the Content onto the Website.
2.5. Acceptance of the templates shall be deemed to have taken place upon the occurrence of any of the following events:
2.5.1. the Customer uses any part of the Content for any revenue-earning purposes or to provide any services to third parties other than for test purposes; or
2.5.2. the Customer fails to approve the templates in accordance with Clause 2.2 or to notify Frooition of any Error in accordance with Clause 2.3 within 30 days of being provided with the templates by Frooition in accordance with this Clause 2.

3. CUSTOMER OBLIGATIONS
3.1. The Customer agrees that it shall:
3.1.1. provide Frooition with access to, and use of, all information, data and documentation reasonably required by Frooition for the performance of its obligations under these Terms upon being requested to do so;
3.1.2. ensure that such information, data and documentation is complete and accurate in all material respects; and
3.1.3. notify Frooition of any changes to the information, data and documentation it provides to Frooition where relevant.
3.2. Where Frooition is required to comply with any third party website owner’s platform selling policy or similar rules or regulations, the Customer agrees that it shall provide Frooition with all reasonable assistance in ensuring that it is able to comply with the same.
3.3. The Customer accepts that it is responsible for all actions carried out by it or by any third party (save for any party acting on behalf of or under the instruction of Frooition) through the Website and for complying with any rules, regulations or policies imposed by any other third party website owner.
3.4. The Customer shall permit Frooition to place discrete branding (in a single image no bigger than 200×75 pixels, plus text) on any web-store created or designed using the Services, the wording of which shall be as notified by Frooition to the Customer. The Customer agrees that it shall not remove, cover or otherwise interfere with this branding, and that it has no claim over any revenues derived by Frooition from such branding. [Frooition shall remove such branding promptly from the Website upon the termination or expiry of the maintenance and support services to be provided by Frooition upon completion of the Services.

4. PAYMENT
4.1. Frooition shall issue a VAT invoice in respect of the Charges, and the Customer shall pay to Frooition the Charges in accordance with the timescales set out in the Specification, unless the Customer raises a genuine dispute in writing before payment falls due (in which case the Customer shall promptly provide all reasonable assistance to help Frooition resolve such disputes). All Charges are exclusive of VAT.
4.2. The Content will not be permitted to operate in a live environment until the payments specified in the Specification have been received by Frooition in full.
4.3. If the Customer wishes to cancel the Services then it shall be entitled to the following refund:

Refund Timescale:

Within 7 days of placing an order for the Services:
All monies paid by the Customer in respect of such services less a £100 / $150 US administration fee.

More than 7 days after placing an order, but prior to a preview being signed off by the Customer :
50% of monies paid by the Customer in respect of such Services.

Once a preview has been signed off by the Customer:
No refund is available.

5. WARRANTIES
5.1. The Customer warrants that it has permission to provide the materials it provides to Frooition.
5.2. Frooition warrants that:
5.2.1. it shall provide the Services:
5.2.1.1. in accordance with the Specification;
5.2.1.2. in accordance with any and all applicable laws, regulations and statute;
5.2.1.3. with reasonable care and skill; and
5.2.1.4. in accordance with generally recognised commercial practices and standards; and
5.2.2. the Content will perform substantially in accordance with the Specification for a period of 30 days from acceptance in accordance with Clause 2. If the Content does not so perform, Frooition shall, for no additional charge, carry out any work necessary in order to ensure that the Content substantially complies with the specification.
5.3. The warranty set out in Clause 5.2 shall not apply to the extent that any failure of the Content to perform substantially in accordance with the specification is caused by any act or omission of the Customer or any third party (including but not limited to any third party website owner).
5.4. Frooition cannot warrant that changes made by a third party website owner (such as eBay) to its website platform will not affect the Services, and Frooition shall not be liable for any damage or loss suffered by the Customer as a result of such changes.
5.5. These Terms and the documents referred to in them set out the full extent of Frooition’s obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into these Terms or any collateral contract (whether by statute or otherwise) are hereby excluded.

6. LIABILITY
6.1. Nothing in these Terms shall operate to exclude or limit either party’s liability for:
6.1.1. death or personal injury caused by its negligence;
6.1.2. fraud; or
6.1.3. any other liability which cannot be excluded or limited under applicable law.
6.2. Neither party shall be liable to the other for any loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage.
6.3. Subject to Clause 6.1, each party’s aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with these Terms or any collateral contract shall in no circumstances exceed 125% of the total Charges payable by the Customer to Frooition under these Terms, or such other amount as may be set out in the Specification. This limit shall not apply to Clause 7.4., which shall be limited to the amount that Frooition is successfully able to claim under its insurance.
6.4. Frooition shall take out and maintain such insurance policies as may be set out in the Specification.

7. INTELLECTUAL PROPERTY RIGHTS
7.1. Unless otherwise stated, Frooition (or its licensors) own all Intellectual Property Rights in the Services and all material it provides to the Customer. Use of this material is permitted only where expressly authorised by Frooition but Frooition hereby grants the Customer a non-exclusive licence of such Intellectual Property Rights for the purpose of operating the Website.
7.2. The Customer shall retain the Intellectual Property Rights in any and all materials provided by it to Frooition. However, the Customer shall grant to Frooition a non-exclusive, royalty-free licence to use such material as far as is necessary for Frooition to carry out the Services (and for no other purpose). Frooition shall cease use of any and all materials provided by the Customer upon the termination of expiry of this Agreement.
7.3. The Customer shall indemnify Frooition against all damages, losses and expenses arising as a result of any action or claim that the information, documentation or materials the Customer provides infringes the Intellectual Property Rights of a third party.
7.4. Frooition shall indemnify the Customer against all damages, losses and expenses arising as a result of any action or claim that the Content or any information, documentation or materials Frooition provides infringes any Intellectual Property Rights of a third party other than infringements referred to in Clause 7.3 or where the action or claim arises out of Frooition’s compliance with any designs, specifications or instructions provided by the Customer.
7.5. The indemnities in Clause 7.2 and Clause 7.3 are subject to the following conditions:
7.5.1. the indemnified party promptly notifies the indemnifier in writing of the claim;
7.5.2. the indemnified party makes no admissions or settlements without the indemnifier’s prior written consent;
7.5.3. the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and
7.5.4. the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim.

8. TERM AND TERMINATION
8.1. These Terms shall commence on the date Frooition accepts the Specification and shall (subject to earlier termination pursuant to this Clause 8) terminate automatically on completion of the Services and payment of all outstanding sums.
8.2. Either party may terminate these Terms immediately at any time by written notice to the other party if:
8.2.1. that other party commits any material breach of its obligations under these Terms which (if remediable) is not remedied within 14 days after the service of written notice specifying the breach and requiring it to be remedied;
8.2.2. that other party ceases to trade (either in whole, or as to any part or division involved in the performance of these Terms);
8.2.3. that other party becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to that party;
8.2.4. a person (including the holder of a charge or other security interest) is appointed to manage or take control of the whole or part of the business or assets of that other party, or notice of an intention to appoint such a person is given or documents relating to such an appointment are filed with any court;
8.2.5. the ability of that other party’s creditors to take any action to enforce their debts is suspended, restricted or prevented or some or all of that party’s creditors accept, by agreement or pursuant to a court order, an amount of less than the sums owing to them in satisfaction of those sums; or
8.2.6. any process is instituted which could lead to that other party being dissolved and its assets being distributed to its creditors, shareholders or other contributors (other than for the purposes of solvent amalgamation or reconstruction).
8.3. The Customer may terminate the Services at any time on providing Frooition with no less than seven days’ prior written notice. Any deposit paid by the Customer shall be non-refundable in such instances (providing that this shall not apply where the Customer terminates this Agreement in accordance with Clause 8.2 above).
8.4. On expiry or termination of these Terms:
8.4.1. each party shall immediately cease to use any and all materials belonging to the other party and promptly return the same to the other party; and
8.4.2. all provisions of these Terms shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.

9. CONFIDENTIALITY
9.1. Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
9.2. Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.
9.3. The obligations set out in this Clause 9 shall not apply to Confidential Information which the receiving party can demonstrate:
9.3.1. is or has become publicly known other than through breach of this clause;
9.3.2. was in possession of the receiving party prior to disclosure by the other party;
9.3.3. was received by the receiving party from an independent third party who has full right of disclosure;
9.3.4. was independently developed by the receiving party; or
9.3.5. was required to be disclosed by governmental authority.

10. NOTICES
10.1. Any notice given under these Terms shall be in writing and delivered personally or sent by pre-paid first-class post, recorded delivery, registered post, fax or email to the address, fax number or e-mail address set out in the Specification (or such other person, address, fax number or e-mail address as the receiving party may have notified to the other); and
10.2. A notice is deemed to have been received:
10.2.1. if delivered personally, at the time of delivery;
10.2.2. in the case of fax or e-mail, at the time of transmission, provided a confirmatory copy is sent by first-class pre-paid post or by personal delivery before the end of the next Business Day;
10.2.3. in the case of pre-paid first class post, recorded delivery or registered post, 48 hours from the date of posting;
10.2.4. in the case of registered airmail, five days from the date of posting; or
10.2.5. if deemed receipt under the previous paragraphs of this Clause 10.2 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is not a public holiday in the place of receipt), when business next starts in the place of receipt.

11. GENERAL
11.1. Neither party shall be permitted to make any media release or public announcement relating to this Agreement unless and until it has explicitly asked the other party in writing and obtained the other party’s written consent to the same. Frooition shall however be permitted to place an example of the Customer’s store design within its client portfolio on its website for promotional purposes.
11.2. A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under these Terms shall forthwith notify the other and shall inform the other of the period for which it is estimated that such failure or delay will continue. The affected party shall not be liable for any loss or damage incurred by the other party as a result of a Force Majeure Event providing it complies with its obligations under this clause.
11.3. Neither party may assign or transfer any of its rights or obligations under these Terms without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.
11.4. These Terms (and the documents referred to in them) set out the entire agreement between the parties. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to these Terms except as expressly stated in these Terms (or the documents referred to in them).
11.5. These Terms are made for the benefit of the parties to it and is not intended to benefit, or be enforceable by, any other person.
11.6. A variation of these Terms shall be in writing and signed by or on behalf of both parties to these Terms.
11.7. A waiver of any right under these Terms is only effective if it is in writing, and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. No waiver shall be implied by taking or failing to take any other action.
11.8. If any provision in these Terms is deemed invalid, void or unenforceable, that term shall be deleted from these Terms and such deletion shall not affect the validity or enforceability of the remaining provisions.
11.9. Nothing in these Terms is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
11.10. Any legal proceedings instituted against the Customer by Frooition shall be brought in the courts of the Customer’s country/state of domicile and any legal proceedings against Frooition by the Customer shall be brought in the courts of England and Wales. These Terms and such proceedings shall be governed by the laws of England and Wales and each party agrees to submit to the jurisdiction of the courts as set out above.

E-commerce theme terms:

ECOMMERCE THEME DESIGN TERMS AND CONDITIONS

The Following are the terms and conditions under which Frooition agrees to provide its Services to the Customer. By doing any of the following: placing an order for services, by expressly assenting to these terms or by accepting Services provided by Frooition, Customer hereby agrees to be bound by these terms and conditions.

GENERAL

1. Binding agreement: The following terms and conditions are the rules by which you agree to be bound when purchasing a Product from Frooition. You agree that you are legally bound by these terms and conditions when you (i) successfully purchase a Product; or when you (ii) use or make use of any purchased Frooition Product.

2. Amendments: You understand and agree that these terms and conditions can change without notice.

3. Definitions: For the purposes of these terms and conditions the definitions below apply whenever a term is capitalized, or “Date of Purchase” means the date on which a commercial transaction with Froo occurs “End Product(s)” means a single instance of a Froo theme having been installed for a personal or commercial project. “Intellectual Property Rights” means any and all proprietary rights, titles, and interests, including, but not limited to, trademarks, patents and copyrights, as existing and recognized anywhere in the World on the Date of Purchase. “Frooition” means Froo.com Ltd “Product(s)” means any paid for item, subscription, or service offered by Froo. “Product Update(s)” means subsequent updates to a Product released by Frooition for the purposes of, but not limited to, fixing bugs or addition features. “Supported Browser(s)” means, subject to an express statement to the contrary, (i) the most recent stable release version of Chrome, Firefox, or Safari; and (ii) Internet Explorer 11 and above, as well as the last two stable versions of Microsoft Edge. “Unsupported Brower(s)” means any browser not listed as a Supported browser.

4. General

a. Frooition retains all Intellectual Property Rights and all other proprietary rights to this individual theme and all products.

5. Licence

a. The Purchaser of an individual theme is granted a non-exclusive worldwide license, allowing the Purchaser, or a single client of the Purchaser, to create, with this theme, a single End Product.

b. The Purchaser of an individual theme is licensed to install the purchased theme once on (1) domain.

c. The Purchaser of an individual theme is not entitled to distribute, duplicate and make available to anyone, resell in its original form, or modify for the purposes of reselling, the purchased theme.

6. Support

a. Our dedicated support team will happily assist you (the customer) with the initial installation of that theme and its features. Assistance with the manual installation of a theme update, however, is not available.

b. You are entitled to any Product Updates that Frooition releases for that theme, for the during of the commercial lifespan of that theme.

c. Our support team does its best to accommodate requests for customization help, wherever possible.

7. Refunds

a. Individual theme purchases are eligible for a refund within seven (7) days from the Date of Purchase, provided customers reach out to our dedicated support team should they encounter difficulties with their purchase.

b. Once applied to a live site no refunds shall be given.

8. General

a. Frooition warrants that all Products are developed and maintained in accordance with applicable industry standards. All products have been subject to internal quality assurance reviews and have been deemed fit for commercial sale.

9. Browser Support

a. General: All Frooition themes are, subject to reasonable limitations, visually consistent and are functionally compatible, in all material aspects, across all of the Supported Browsers. In an instance where certain features or designs are not reasonably feasible due to a browser’s technical limitations, Frooition will use its discretion to implement a reasonable alternative.

EXCLUSIONS OF LIABILITY

10. Subject to s.11 FROOITION IS NOT LIABLE FOR ANY DAMAGES, MONETARY OR OTHERWISE, WHICH MAY ARISE THROUGH THE PURCHASE AND USE OF A FROOITION PRODUCT.

11. Section 10 does not apply where damages were incurred as a result of gross negligence or wilful misconduct.

12. Frooition is not liable and provides not warranty for any errors, bugs, conflicts, or incompatibilities with Products arising from (i) improper installation of the Product; or (ii) any use of the Product for any purpose other than that of which is was being offered by Frooition; or (iii) the concurrent use of their party products or services, as reasonably determined by Frooition; or (iv) any and all changes or modifications to the Product after the Date of Purchase; or (v) for any errors, bugs, conflicts, or incompatibilities which arise exclusively on Unsupported browsers.

GOVERNINING LAW AND JURISDICTION

13. Any legal proceedings instituted against the Customer by Frooition shall be brought in the courts of the Customer’s country/state of domicile and any legal proceedings against Frooition by the Customer shall be brought in the courts of England and Wales. These Terms and such proceedings shall be governed by the laws of England and Wales and each party agrees to submit to the jurisdiction of the courts as set out above.

Software License Agreement

This Agreement is between you (you) and Froo.com Limited incorporated and registered in England and Wales with company number 05902288 whose registered office is at Unit E Silver End Business Park, Brettell Lane, Brierley Hill, West Midlands, DY5 3LG trading as Frooition (us or we).

IMPORTANT NOTICE TO ALL USERS: BY PROCEEDING TO LOG IN TO THE SOFTWARE YOU AGREE TO THE TERMS OF THIS AGREEMENT. WE SHALL ONLY PROVIDE THE SERVICES (AS SET OUT BELOW) ON THESE TERMS.

You should print a copy of this Agreement for future reference.

1. Services

1.1. We will supply the eBay store and template hosting services, software platform and related services listed on the previous web page (Services) to you from the date agreed between us in writing until such time as this Agreement is terminated by either party in accordance with Clause 11 below.

1.2. The Services and material provided through our Services is for use only in relation to the enhancement of your listings on eBay. You may only use the Services for this purpose. Any other type of use requires our prior written agreement.

1.3. We may provide some or all of the Services through a third party chosen by us.

2. Our Obligations We agree to:

2.1. provide the Services with reasonable care and skill;

2.2. provide the Services in accordance with any and all applicable laws, regulations and statute; and

2.3. take reasonable steps to ensure that any materials we produce as part of the Services are fit for any intended purpose agreed between you and us as far as reasonably possible (subject always to Clause 9 below and providing the same are within our ability).

3. Your Obligations

3.1. You agree that you shall:

3.1.1. provide us with access to, and use of, all information, data and documentation we may reasonably require for the performance of our obligations under this Agreement upon being requested to do so;

3.1.2. ensure that such information, data and documentation is complete and accurate in all material respects; and

3.1.3. notify us of any changes to the information, data and documentation you provide to us where relevant.

3.2. Where we are required to comply with any third party website owner’s platform selling policy or similar rules or regulations, you agree that you shall provide us with all reasonable assistance in ensuring that we are able to comply with the same. 3.3. When using our Services, you must not:

3.3.1. transmit or circulate material contained on our website or our Services to a third party (including republication on another website) other than emailing extracts or the page link for review purposes or where we have specifically and expressly created such material to be made available for redistribution by you;

3.3.2. sell, rent or otherwise sub-licence our Services or material on our website;

3.3.3. reproduce, duplicate, copy or otherwise exploit material from our Services or from our website for a commercial purpose (other than in respect of enhancing your listings on eBay);

3.3.4. edit or otherwise modify the Services or any material contained on our website;

3.3.5. copy, email or upload any content or otherwise transmit material which is in any way abusive, deceptive, threatening, defamatory, indecent or obscene, which will harass, any person or which might restrict or inhibit the use and enjoyment of our Services or website by any person;

3.3.6. post, upload, email or otherwise transmit any unsolicited or unauthorised advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of solicitation;

3.3.7. post, upload, email or otherwise transmit any content that contains software viruses or any other computer code, files or programs designed to interrupt, restrict, destroy, limit the functionality of or compromise the integrity of any computer software or hardware or telecommunications system;

3.3.8. remove the copyright or trade mark notice(s) from any copies of any material owned by us or our licensors;

3.3.9. use the Services or any materials prepared by us as part of the Services for any unlawful purpose or in violation of any terms and conditions or policies of eBay or their business partners from time to time; nor

3.3.10. attempt to gain unauthorised access to any restricted area of our Services or website.

3.4. You agree to comply with the terms of our fair usage policy, as referred to in Clause 6 below.

3.5. We may take such action as we deem appropriate to deal with the breach of any of the above terms, including suspending or cancelling your account, restricting your access to our Services, or commencing legal proceedings against you (providing that, where any breach is capable of remedy, we have provided you with reasonable notice of such breach and a reasonable opportunity to remedy such breach first).

3.6. We reserve the right to remove from your website or web-store (to the extent that we are able to do so) any content that we reasonably believe fails to comply with this Agreement.

4. Access

4.1. Whilst we shall make every reasonable effort to provide uninterrupted and secure access to our Services and website, access to certain areas of our Services or website may be restricted where determined by us, acting reasonably. The Services and our website are provided on an “as is” basis. We shall not be liable for any loss or damage suffered by you as a result of any inability by you to access the Services or our website (save where this is caused by our gross negligence or wilful misconduct).

4.2. If we provide you with a user ID and/or password to enable you to access restricted areas of our website or other content or Services, you must ensure that such user ID and/or password are kept safe and confidential. You are responsible for all activities that occur under your user ID and/or password.

4.3. We may disable your user ID and/or password at our sole discretion for any reason at any time, including if you breach any provision within this Agreement or any other contractual obligation you owe to us.

5. Grant and scope of Software licence

5.1. In consideration of the payment of the fees set out in Clause 8 below we grant to you a non-exclusive, non-transferable licence to use the software provided by us as part of the Services (Software) on the terms of this Agreement.

5.2. You may use the Software to exercise your rights under this Agreement for your internal business purposes only.

6. Fair Usage Policy

Our Services offer our customers the flexibility of unlimited bandwidth, store design hosting and access to our free support service. However, in order to provide a fast and reliable service to all our customers, all usage of our Services is subject to our fair usage policy. This can be seen by clicking here [(insert link)]. By proceeding to log in to the software you agree to comply with this policy as amended by us from time to time.

7. Intellectual property rights

7.1. Unless otherwise stated, we (or our licensors) own all intellectual property rights in the Services and all material we provide to you (including but not limited to the Software). Use of this material is permitted only where expressly authorised by us but we grant you a non-exclusive licence of such intellectual property rights for the purpose of exercising your rights under this Agreement. Your use of the Software will be additionally subject to the terms of our end-user licence agreement (if any) in force from time to time.

7.2. You shall retain the intellectual property rights in any and all materials provided by you to us. However, you shall grant to us a non-exclusive, royalty-free licence to use such material as far as is necessary for us to carry out the Services (and for no other purpose). We shall cease use of any and all materials provided by you upon the termination of expiry of this Agreement. By providing materials to us, you warrant to us that you are either the owner of such materials, or have the owner’s express permission to provide such materials to us.

7.3. We cannot guarantee safekeeping or safe storage of any image or data that you upload when using our Services or our website or any other materials provided by you to us, and we accept no liability for loss of any images, data or materials. You are strongly advised to keep copies of all such images, data and materials.

7.4. We shall indemnify you against all damages, losses and expenses arising as a result of any action or claim that the information, documentation or materials we provide infringes any intellectual property rights of a third party other than infringements referred to in Clause 10.4 or where the action or claim arises out of our compliance with any designs, specifications or instructions provided by you.

7.5. The indemnities in Clauses 7.4 and 10.4 are subject to the following conditions:

7.5.1. the indemnified party promptly notifies the indemnifier in writing of the claim;

7.5.2. the indemnified party makes no admissions or settlements without the indemnifier’s prior written consent;

7.5.3. the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and

7.5.4. the indemnified party allows the indemnifier complete control over the litigation and settlement of any action or claim.

8. PAYMENT

8.1. You shall pay the fees quoted by us to you for the Services (Charges). Payments shall be made in such manner and to such account as notified by us to you, unless you raise a genuine dispute in writing before payment falls due (in which case you shall, as soon as reasonably practicable, provide all reasonable assistance to help us resolve such disputes).

8.2. We shall be entitled to change the Charges on providing you no less than [28 days’] prior written notice. If you do not agree with these changes you may terminate this Agreement in accordance with Clause 11.3.

8.3. If you fail to pay any sum due under this Agreement on the due date we reserve the right, without prejudice to any other rights or remedies it may have, to suspend the performance of our obligations under this Agreement (including but not limited to the removal of your eBay store and listing design and/or limiting your access to the Frooition software platform) until such time as you make such payments in full. We shall not be liable for any loss suffered by you as a result of any action taken by us in accordance with this Clause 8.3.

9. warranty

9.1. We warrant to you that:

9.1.1. we shall perform the Services with reasonable skill and care consistent with any applicable industry standards;

9.1.2. any materials and documentation we provide shall be fit for any purpose agreed between the parties in writing and conform with any specifications agreed between the parties in writing in all material respects for a period of 30 days from delivery (Warranty Period); and

9.1.3. we have the right to enter into and fully perform this Agreement.

9.2. The warranties set out in Clauses 9.1.1 and 9.1.2 shall not apply to the extent that any failure to comply is caused by any act or omission of you or any third party (including but not limited to any third party website owner).

9.3. If, within the Warranty Period, you notify us in writing of any defect or fault in the materials provided, we will, at our sole option, either repair or replace the materials, provided that you make available all the information that may be necessary to help us to remedy the defect or fault, including sufficient information to enable us to recreate the defect or fault. This warranty does not apply if the defect or fault in the materials results from:

9.3.1. you having amended the materials;

9.3.2. us complying with your instructions or from the documentation you have provided to us; and/or

9.3.3. you having used the materials in contravention of the terms of this Agreement.

9.4. We cannot warrant that changes made by a third party website owner (such as eBay) to our website platform will not affect the Services, and we shall not be liable for any damage or loss suffered by you as a result of such changes.

9.5. We shall include only materials that have been provided by or approved you on any web-store. You acknowledge that we have no control over any content placed on the store by visitors and we do not purport to monitor the content of the store. We shall however remove content from the store where we reasonably suspect such content infringes any applicable laws, regulations or third party rights and shall notify you immediately if we become aware of any allegation that any content on the store may be inappropriate.

9.6. This Agreement and the documents referred to in it sets out the full extent of our obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into this Agreement or any collateral contract (whether by statute or otherwise) are hereby excluded, including but not limited to quality, completeness and fitness for purpose.

10. OUR liability

10.1. Nothing in this Agreement shall limit or exclude each party’s liability for:

10.1.1. death or personal injury resulting from our negligence;

10.1.2. fraud or fraudulent misrepresentation;

10.1.3. any other liability that cannot be excluded or limited by English law.

10.2. Neither party shall be liable to the other, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Agreement for:

10.2.1. loss of profits, sales, business, or revenue;

10.2.2. business interruption;

10.2.3. loss of anticipated savings;

10.2.4. loss or corruption of data or information;

10.2.5. loss of business opportunity, goodwill or reputation; or

10.2.6. any indirect or consequential loss or damage.

10.3. Subject to the above, our maximum aggregate liability under or in connection with this Agreement whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to 125% of the Charges paid by you. This limit shall not apply to Clause 7.4, which shall be limited to the amount that we are successfully able to claim under our insurance.

10.4. You shall indemnify us against all damages, losses and expenses arising as a result of any action or claim that the information, documentation or materials you provide infringes the intellectual property rights of a third party or any breach by you of the terms of this Agreement, subject to Clause 7.5.

11. Termination

11.1. We reserve the right to terminate and/or suspend this Agreement immediately at any time upon written notice if we have not received instructions or otherwise been able to obtain a response from you by email for a period of 5 working days or more, provided that we have sent at least 5 emails to your specified email address requesting a response; and/or

11.2. We shall further be entitled to shut down any eBay store where:

11.2.1. the store remains inactive for a period of three months or more; and/or

11.2.2. you fail to pay any amount due to us within three months of its due date. We may at our discretion agree to reactivate an eBay store, but please be aware that this will be subject to payment of a reinstallation and reactivation fee.

11.3. Either party may terminate this Agreement immediately at any time by written notice to the other party if:

11.3.1. that other party commits any material breach of its obligations under this Agreement which (if remediable) is not remedied within 14 days after the service of written notice specifying the breach and requiring it to be remedied;

11.3.2. that other party ceases to trade (either in whole, or as to any part or division involved in the performance of this Agreement);

11.3.3. that other party becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to that party;

11.3.4. a person (including the holder of a charge or other security interest) is appointed to manage or take control of the whole or part of the business or assets of that other party, or notice of an intention to appoint such a person is given or documents relating to such an appointment are filed with any court;

11.3.5. the ability of that other party’s creditors to take any action to enforce their debts is suspended, restricted or prevented or some or all of that party’s creditors accept, by agreement or pursuant to a court order, an amount of less than the sums owing to them in satisfaction of those sums; or

11.3.6. any process is instituted which could lead to that other party being dissolved and its assets being distributed to its creditors, shareholders or other contributors (other than for the purposes of solvent amalgamation or reconstruction).

11.4. Either party may terminate this Agreement or any of the Services by giving the other not less than 3 months’ notice in writing (providing that, where we give notice in accordance with Clauses 8.2 or 14.2, this notice period will be reduced to 7 days).

11.5. Upon termination of this Agreement for any reason:

11.5.1. all rights granted to you under this Agreement shall cease;

11.5.2. you must cease all activities authorised by this Agreement; and

11.5.3. you must immediately delete or remove any materials owned by us from all computer equipment in your possession and immediately all copies of such material and, where requested by us, certify to us that you have done so.

12. Confidentiality

12.1. Each party shall protect any information provided by the other which is identified as confidential at the time of disclosure or ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure (Confidential Information) against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.

12.2. Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.

12.3. The obligations set out in this Clause 12 shall not apply to Confidential Information which the receiving party can demonstrate:

12.3.1. is or has become publicly known other than through breach of this clause;

12.3.2. was in possession of the receiving party prior to disclosure by the other party;

12.3.3. was received by the receiving party from an independent third party who has full right of disclosure;

12.3.4. was independently developed by the receiving party; or

12.3.5. was required to be disclosed by governmental authority.

13. NOTICES

13.1. Any notice given under this Agreement shall be in writing and delivered personally or sent by pre-paid first-class post, recorded delivery, registered post, fax or email to the address, fax number or e-mail address provided by each party to the other; and

13.2. A notice is deemed to have been received:

13.2.1. if delivered personally, at the time of delivery;

13.2.2. in the case of fax or e-mail, at the time of transmission, provided a confirmatory copy is sent by first-class pre-paid post or by personal delivery before the end of the next Business Day (meaning any day (other than a Saturday or Sunday) when banks are generally open for normal business in London);

13.2.3. in the case of pre-paid first class post, recorded delivery or registered post, 48 hours from the date of posting;

13.2.4. in the case of registered airmail, five days from the date of posting; or

13.2.5. if deemed receipt under the previous paragraphs of this Clause 10.2 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is not a public holiday in the place of receipt), when business next starts in the place of receipt.

14. Other important terms

14.1. You represent and warrant that you have authority to bind any business on whose behalf you purchase the Services.

14.2. We may amend this Agreement from time to time by providing you with no less than 28 days’ prior notice. If you do not agree with the new Agreement then you should terminate this Agreement in accordance with Clause 11.3 above.

14.3. Neither party shall be permitted to make any media release or public announcement relating to this Agreement unless and until it has explicitly asked the other party in writing and obtained the other party’s written consent to the same. Froo shall however be permitted to place an example of the Customer’s store design within its client portfolio on its website for promotional purposes.

14.4. A party who becomes aware of any event arising which is beyond the reasonable control of the affected party (including any industrial dispute affecting any third party, governmental regulations, fire, flood, disaster, civil riot or war) (Force Majeure Event) which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this Agreement shall forthwith notify the other and shall inform the other of the period for which it is estimated that such failure or delay will continue. The affected party shall not be liable for any loss or damage incurred by the other party as a result of a Force Majeure Event providing it complies with its obligations under this clause.

14.5. Neither party may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.

14.6. This Agreement (and the documents referred to in them) set out the entire agreement between the parties. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as expressly stated in this Agreement (or the documents referred to in them).

14.7. This Agreement is made for the benefit of the parties to it and is not intended to benefit, or be enforceable by, any other person.

14.8. A waiver of any right under this Agreement is only effective if it is in writing, and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. No waiver shall be implied by taking or failing to take any other action.

14.9. If any provision in this Agreement is deemed invalid, void or unenforceable, that term shall be deleted from this Agreement and such deletion shall not affect the validity or enforceability of the remaining provisions.

14.10. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

14.11. Any legal proceedings instituted against you by us shall be brought in the courts of your country/state of domicile and any legal proceedings against us by you shall be brought in the courts of England and Wales. This Agreement and such proceedings shall be governed by the laws of England and Wales and each party agrees to submit to the jurisdiction of the courts as set out above.